The Brief

[mschulter]

Now for the big, big, _no-no_ of Geragos as revealed by those transcripts
Marlene has so helpfully made available.

That no-no is _ever_ taking the stance in a capital case that "the penalty
phase is of no moment"! If you're defending someone on trial for their life,
literally, then you have an absolute duty to be ready for that penalty
phase, however unpleasant or improbable it may seem!

"The fact of the matter is that this case is not about mitigation..." is one
of the rare cases where "never say never" doesn't apply -- a capital defense
attorney must _never_ say or think this! You've got to be ready with
mitigation, and in fact look into the whole life history of your client,
preferably using a mitigation specialist with the social work skills that
attorneys rarely have and don't have time fully to exercise even if they had
them.

In one sense, the penalty phase for Scott could be expected for anyone
familiar with death penalty law to have an issue even more important in a
sense than mitigation: the lack of the kind of aggravation which in this day
and age could reasonably make the case different from many worse crimes
which get LWOP. Trying to present penalty phase testimony on the details of
other cases was going a bit far: the Georgia Supreme Court once pointed out
that comparative review was _their_ responsibility, not that of the jury.
But while the best strategy for giving the jury some perspective within the
bounds of what current law allows is an open question, what you _don't_ do
is make a statement like this:

"This case is very simply about the fact that my client didn't do this, my
client is innocent of these horrible crimes."

"Horrible" in any everyday usage of that word? Sure! But in the context of a
capital penalty trial? Absolutely not! Lack of aggravation could be the most
powerful argument for life, if the attorney is in the right frame of mind to
convey it to the jury. And this is just the opposite.

Some attorneys have been even less subtle: "Whoever did this is an animal --
but it couldn't be my client!" Famous last words, not for the lawyer who
thinks this way or even argues to a guilt phase jury in such words (there
are real cases!), but for clients who can be and have been executed as a
result of such representation. While Geragos didn't say this, his sentiment
seems uncomfortably close to it.

This issue is likely moot because the jury selection errors should
automatically reverse the death sentence anyway, and also because of
possible changes in California law this year that could make the death
penalty a matter of history in our State. Well, I'll give Geragos credit for
speaking up about the jury selection and preserving a sure-fire issue (or as
sure as one can be about these things!).

But "the penalty phase is of no moment" -- that's a capital defense no-no!

[marlene]

I was in the courtroom the day Geragos said the penalty phase wouldn't be necessary -- the reaction was perceptible -- oh, yea, we'll show you!!!

[mschulter]

I was in the courtroom the day Geragos said the penalty
phase wouldn't be necessary -- the reaction was perceptible -- oh, yea,
we'll show you!!!

And show him they did! Maybe the U.S. Supreme Court in 1986 decided not to
recognize or at least to act on reality, but I'd give both Judge Delucchi
and the prosecutors credit for realizing that a death-qualified jury,
especially a "Delucchi-style" jury where you either "support the death
penalty" or get excluded for cause, was the surest road to a conviction,
especially with this level of publicity and bias!

And what just hit me, after all the posts I've written about _Witherspoon_
and _Witt_, is that Judge Delucchi may have made a very shrewd legal move!

It makes him look like a total DP novice, rather than veteran of over 20
capital trials (according to some statements in the transcript), but it
might be exactly the right move to accomplish the best result likely for the
prosecution.

Here's how. Error on death qualification overturns the _death sentence_, but
not the _conviction_ for first degree or the special circumstance finding.
So Scott gets convicted by a jury that anyone who follows DP law knows
will likely be biased strongly in favor of guilt, gets sentenced to death,
the sentence gets overturned on appeal -- and he winds up with LWOP!

In fact, prosecutors often deliberately charge a murder as a death case
because they want a death-qualified jury -- even if without Judge Delucchi's
totally off-the-wall application of _Witt_. Then, when they have their jury,
they drop their plans to seek the death penalty, but have a better chance of
getting a conviction and LWOP or some other life sentence, especially if the
case is weak enough that a less prosecution-prone jury would be likely to
find reasonable doubt.

And Scott's prosecutors may have eagerly gone along with this, because they
understood that this kind of death qualification wouldn't put the
guilt-phase verdicts in danger at all, but give them an even better chance
for conviction and LWOP than a properly death-qualified jury with some folks
who might be more receptive to "reasonable doubt."

And for Judge Delucchi to give and the prosecutors to win a death sentence
against "the monster Scott Peterson" wouldn't hurt their public images, even
if they knew that a decade or so down the road the California Supreme Court
would reverse the death sentence, leaving LWOP in place (unless there were
other reasons to reverse which would be there anyway).

[marlene]

hmmm, very plausible for his DP errors -- but how do you account for his many other errors? he allowed Cheng to testify on the movements of bodies in water, which Cheng repeatedly said he had no expertise, because tides are a well-established science. He allowed Devore to use a method never before used because sonograms are a well-established science. I personally think he relied on the strong deference given to trial courts, especially by the CA SC and especially in capital cases -- they are loathe to reverse a conviction. And if the conviction is some day reversed, a new trial will ensue, Scott will remain in jail, he won't see a single day of freedom, and they count on getting another guilty verdict. If not, the public has him convicted, he'll have spent 10-15 years at least in prison, his life will be hell when he gets out, Laci family will proceed with their wrongful death suit, and Scott and his family will be in financial ruins -- he will, in effect, definitely not have GOTTEN AWAY with it.

[mschulter]

hmmm, very plausible for his DP errors -- but how do you
account for his many other errors? he allowed Cheng to testify on the
movements of bodies in water, which Cheng repeatedly said he had no
expertise, because tides are a well-established science. He allowed Devore
to use a method never before used because sonograms are a well-established
science.

Good questions! Someone more experienced with the specific guilt-phase
issues might better respond.

I personally think he relied on the strong deference given to trial
courts, especially by the CA SC and especially in capital cases -- they are
loathe to reverse a conviction.

And since 1986, they've often been loathe to reverse death sentences also!
It's fortunate in a way that the judge and prosecutor erred so clearly.

And if the conviction is some day reversed, a new trial will ensue,
Scott will remain in jail, he won't see a single day of freedom, and they
count on getting another guilty verdict. If not, the public has him
convicted, he'll have spent 10-15 years at least in prison, his life will be
hell when he gets out, Laci family will proceed with their wrongful death
suit, and Scott and his family will be in financial ruins -- he will, in
effect, definitely not have GOTTEN AWAY with it.

The grim silver lining, for me, is that long before we reach that point, at
least the death penalty may no longer be available in California, which the
DA could otherwise seek again on a retrial (of penalty alone or also guilt).
But whether he's guilty or innocent, even a reversal of the conviction and
no retrial would leave him in no enviable position.

[LACurry]

I was in the courtroom the day Geragos said the penalty
phase wouldn't be necessary -- the reaction was perceptible -- oh, yea,
we'll show you!!!

And show him they did! Maybe the U.S. Supreme Court in 1986 decided not to
recognize or at least to act on reality, but I'd give both Judge Delucchi
and the prosecutors credit for realizing that a death-qualified jury,
especially a "Delucchi-style" jury where you either "support the death
penalty" or get excluded for cause, was the surest road to a conviction,
especially with this level of publicity and bias!

And what just hit me, after all the posts I've written about _Witherspoon_
and _Witt_, is that Judge Delucchi may have made a very shrewd legal move!

It makes him look like a total DP novice, rather than veteran of over 20
capital trials (according to some statements in the transcript), but it
might be exactly the right move to accomplish the best result likely for the
prosecution.

Here's how. Error on death qualification overturns the _death sentence_, but
not the _conviction_ for first degree or the special circumstance finding.
So Scott gets convicted by a jury that anyone who follows DP law knows
will likely be biased strongly in favor of guilt, gets sentenced to death,
the sentence gets overturned on appeal -- and he winds up with LWOP!

In fact, prosecutors often deliberately charge a murder as a death case
because they want a death-qualified jury -- even if without Judge Delucchi's
totally off-the-wall application of _Witt_. Then, when they have their jury,
they drop their plans to seek the death penalty, but have a better chance of
getting a conviction and LWOP or some other life sentence, especially if the
case is weak enough that a less prosecution-prone jury would be likely to
find reasonable doubt.

And Scott's prosecutors may have eagerly gone along with this, because they
understood that this kind of death qualification wouldn't put the
guilt-phase verdicts in danger at all, but give them an even better chance
for conviction and LWOP than a properly death-qualified jury with some folks
who might be more receptive to "reasonable doubt."

And for Judge Delucchi to give and the prosecutors to win a death sentence
against "the monster Scott Peterson" wouldn't hurt their public images, even
if they knew that a decade or so down the road the California Supreme Court
would reverse the death sentence, leaving LWOP in place (unless there were
other reasons to reverse which would be there anyway).

Brilliant, mschulter! It could explain this odd behavior of Delucchi in this case, and I have no doubts the prosecution would go along with anything that would get the death penalty. What they weren't counting on is the other errors that I do believe make very strong points. As I have said, numerous times, this seems to be a very planned and intentional move on Delucchi's part, especially considering his FACTUAL behaviors in past trials. Thanks for giving one possible explanation. My husband previously stated that, had this been intentional on Delucchi's part, he felt the prosecution would have objected. I disagreed not knowing why but this would explain it. It is stuff like this that degrades our judicial system, if his might be what happened.

[LACurry]

One question....in the opening brief, would it have been permitted to disclose Delucchi's habits in previous trials? I think that whole set of facts, concerning the manner in which he handled his other DP trials, points to deliberate and pre-meditated action, which in my opinion, would warrant a new trial....period.

[marlene]

LACurry, why does your husband think that the prosecution would have objected if they thought this was deliberate on Delucchi's part? Why would they object to anything that worked in their favor? I don't think DAs think about possible reversals -- I think all they think about is getting this conviction. I think the DAs were very happy to allow Delucchi to make any error he wanted so long as it worked in their favor.

If it was deliberate on Delucchi's part, it wasn't to do Scott any favor.

[LACurry]

LACurry, why does your husband think that the prosecution would have objected if they thought this was deliberate on Delucchi's part? Why would they object to anything that worked in their favor? I don't think DAs think about possible reversals -- I think all they think about is getting this conviction. I think the DAs were very happy to allow Delucchi to make any error he wanted so long as it worked in their favor.

If it was deliberate on Delucchi's part, it wasn't to do Scott any favor.

He said he believes they would not care one bit about the pentalty phase but to put themselves in the position to have to retry the guilt phase seems unlikely. He says he believes if it were flagrant and obvious that a mistake occurred that it would end up in a lay down reversal of the guilt phase, they would have brought to the court's attention their issue with any such ruling. Key words being "lay down reversal".

I, on the other hand, think the DA knew their evidence might not return a conviction and they could have gone along with anything that made their case better. I say this because they know, without a doubt, how long it takes for most to file and receive an opinon on appeal. They might have figured that if that reversal were to happen, no harm no foul for them as the would be out of office and/or out of the political arena. I also believe it is healthy for husbands and wives to have differing opinon, it makes for interesting conversation.

[marlene]

LACurry -- I have to agree with you, especially since they did admit evidence that any good lawyer should know is questionable and likely to cause a reversal. But they did it anyway.

One thing about the trial system that disappoints me is the limited role the Judge plays in being sure what goes on should go on. For example, in an appeal, if something indeed should not have been done, but the defense attorney made no objection, then the defendant loses that issue by default. The Judge is obviously supposed to know the law, else how could s/he expect to correctly rule on objections -- so it seems logical to me that the Judge should be empowered to disallow something even if there is no objection. For example, if a defense attorney doesn't challenge evidence that the judge knows he would have to rule inadmissible, so it gets allowed anyway -- that does not seem to be a reasonable way for a Judge to act. To me, the Judge is the umpire -- the pitcher throws the ball and the judge decides whether it's a strike or ball, he doesn't wait for the coaches to say what it is. Same thing with calls on bases -- it's the umpires that make the calls based on their observations and knowledge of the rules of the game. Not so with Judges -- it appears that unless one side or the other objects, anything can be let in. And the appellate courts will uphold it because there was no defense objection. It just really stinks that defendants have to pay such a high price when their attorneys don't do when the judges should be making those calls, acting as an umpire.